Cedrick
Franklin brings this employment discrimination suit pursuant
to 42 U.S.C. § 1983 claiming that his employer, the City
of Athens (the City), violated 42 U.S.C. § 1981. He also
alleges a separate, free-standing violation of the Age
Discrimination in Employment Act of 1967 (the ADEA), 29
U.S.C. § 621 et seq.[1] The City has now moved to
dismiss Franklin's § 1983 claim in its entirety,
doc. 9, arguing broadly that Franklin has failed to
adequately allege that the municipality is liable for
purportedly discriminating against him. In response, Franklin
sought leave of court to file an amended complaint, doc. 17,
which the City opposes on the grounds of futility. Doc. 21.
Both motions are now fully briefed, docs. 10; 17; 18; 20; 21;
and 24, and ripe for review. Upon careful consideration of
the parties' briefs and Franklin's proposed amended
complaint, doc. 17-1, the court finds the City's motion
is due to be denied and Franklin's motion is due to be
granted with certain exceptions delineated herein.

I.
STANDARD OF REVIEW

Under
Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations, ' but it
demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Mere “‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action'” are insufficient. Id. (quoting
Twombly, 550 U.S. at 555). “Nor does a
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Id. (quoting
Twombly, 550 U.S. at 557).

Federal
Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to comply with Rule 8(a)(2) or does not
otherwise state a claim upon which relief can be granted.
When evaluating a motion under Rule 12(b)(6), the court
accepts “the allegations in the complaint as true and
constru[es] them in the light most favorable to the
plaintiff.” Hunt v. Aimco Props., L.P., 814
F.3d 1213, 1221 (11th Cir. 2016). However, “[t]o
survive a motion to dismiss, a complaint must . . .
‘state a claim to relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570). A complaint states a
facially plausible claim for relief “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. While the
plausibility standard does not impose a “probability
requirement, ” the allegations in a plaintiff's
complaint must establish “more than a sheer possibility
that a defendant has acted unlawfully.” Id.;
see also Twombly, 550 U.S. at 555 (emphasizing that
the “[f]actual allegations [included in the complaint]
must be enough to raise a right to relief above the
speculative level”). Ultimately, the line between
possibility and plausibility is a thin one, and making this
determination is a “context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.

Moreover,
the court notes that ordinarily a plaintiff is allowed to
amend her complaint “once as a matter of course within
. . . 21 days after service of a motion under Rule
12(b).” Fed.R.Civ.P. 15(a)(1)(B). Franklin, however,
declined to avail himself of this option and instead opted to
file “an unnecessary motion to amend, with the proposed
amendments attached.” Coventry First, LLC v.
McCarty, 605 F.3d 865, 869 (11th Cir. 2010). In doing
so, Franklin “waived [his] right to amend as a matter
of course and . . . invited [this court] to review [his]
proposed amendments.” Id. at 870. In
conducting this review, the court bears in mind that
“[i]f the underlying facts or circumstances relied upon
by a plaintiff may be a proper subject of relief, [she] ought
to be afforded an opportunity to test [her] claim on the
merits.” Foman v. Davis, 371 U.S. 178, 182
(1962). The Federal Rules of Civil Procedure buttress this
conclusion and provide that the court “should freely
give leave [to amend] when justice so requires.”
Fed.R.Civ.P. 15(a)(2). However, “a district court may
properly deny leave to amend the complaint under Rule 15(a)
when such amendment would be futile.” Hall v.
United Ins. Co. of Am., 367 F.3d 1255, 1262-63 (11th
Cir. 2004). The Eleventh Circuit has explained that an
amendment is futile if “‘the complaint as amended
is still subject to dismissal.'” Id. at
1263 (quoting Burger King Corp. v. Weaver, 169 F.3d
1310, 1320 (11th Cir. 1999)). Thus, the same standard applies
to the City's motion to dismiss and to Franklin's
motion to amend. Moreover, because the proposed amended
complaint is, in relevant part, substantively identical to
Franklin's original pleading, see doc. 21 at
2-3, the court's analysis applies equally to both
documents.

Franklin
is an African-American man over the age of forty who began
working as an equipment operator for the City's Public
Works Department in 2015. Doc. 17-1 at 3-5. Less than a year
later, Franklin's supervisor, Earl Glaze, without
explanation, offered Franklin a choice between resignation or
discharge despite his unblemished disciplinary record.
Id. at 5, 7. Franklin declined to resign and
informed Glaze that he intended to seek legal advice
regarding his treatment. Id. at 5-6. Glaze promptly
discharged Franklin, but hours thereafter sought to rehire
him. Id. Franklin accepted this offer and returned
to work several weeks later. Id. at 6, 9.

During
the rehiring process, Glaze asked Franklin to sign a
purportedly false report of disciplinary action related to an
event that occurred several months prior to Franklin's
discharge. Id. When Franklin refused to sign the
report, Glaze placed him on probation for thirty days pending
a permanent decision regarding his employment status.
Id. at 6. At the conclusion of the probationary
period, Glaze discharged Franklin for purportedly failing to
complete job assignments promptly. Id.at 7. Franklin
alleges that other similarly situated white employees also
failed to promptly complete their assignments without
suffering any repercussions from Glaze, and that Glaze
brushed off Franklin's complaints of racial bias.
Id. at 7, 10- II. The City subsequently hired a
younger white employee to replace Franklin. Id. at
7.

III.DISCUSSION

To
state a plausible claim under § 1983 the complaint must
name a defendant capable of being sued. See Dean v.
Barber, 951 F.2d 1210, 1214 (11th Cir. 1992). The
requisite “capacity to sue or be sued shall be
determined by the law of the state in which the district
court is held.” Id. (quoting Fed.R.Civ.P.
17(b)). Franklin's complaint names both the City and its
Public Works Department as defendants. Doc. 17-1 at 3.
However, as explained by the Alabama Supreme Court,
“[g]enerally, the departments and subordinate entities
of municipalities, counties, and towns that are not separate
legal entities or bodies do not have the capacity to sue or
be sued in the absence of specific statutory
authority.” Ex parte Dixon, 55 So.3d 1171,
1172 n.1 (Ala. 2010) (quotation omitted); see also
Dean, 951 F.2d at 1215 (concluding that under
“Alabama law, a county sheriff's department lacks
the capacity to be sued”); Hardin v. City of
TroyPub. Works Dep't, No. 2:10-CV-663-MEF,
2013 WL 5231872, at *7 (M.D. Ala. Sept. 16, 2013) (relying on
Alabama law to conclude that a municipality's public
works department is “not a separate entity” and
lacks the capacity to be sued). Franklin has failed to
identify any statutory authority authorizing municipal public
works department to sue or be sued, and the court therefore
concludes that the Public Works Department lacks the
requisite legal capacity to be subject to a § 1983
claim. Accordingly, the Department is due to be dismissed
from this action.

A.
Franklin has Plausibly Alleged a § 1983 Claim Against
the City of Athens[3]

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Importantly,
however, &ldquo;[a]lthough, . . . local government may be
subject to liability under &sect; 1983, a plaintiff cannot
rely upon the doctrine of respondeat superior.&rdquo;
Weiland v. Palm Beach Cty. Sheriff&#39;s Office, 792
F.3d 1313, 1328 (11th Cir. 2015). Instead, &ldquo;a
municipality can be found liable under &sect; 1983 only where
the municipality itself causes the constitutional
violation at issue.&rdquo; City of Canton v. Harris,
489 U.S. 378, 385 (1989) (emphasis in original). Thus, for a
plaintiff to prevail on such a claim, it ...

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